Opinion
2:19-cv-00920-AC
11-01-2021
DANIEL NEPOMUCENO, Petitioner, v. BRAD CAIN, Respondent.
AMENDED FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA United States Magistrate Judge
Introduction
Petitioner Daniel Nepomuceno (“Nepomuceno”) brings this federal habeas corpus proceeding pursuant to 28 U.S.C. § 2254 (2020). For the reasons that follow, the Petition for Writ of Habeas Corpus (ECF No. 2) should be denied.
Background
On September 18, 2012, Nepomuceno fatally shot Michael McGovern in Woodburn, Oregon. Respondent's Exhibit (“Resp. Exh.”) Resp. Exh. 124, pp, 7-8. On October 9, 2012, a Marion County grand jury indicted Nepomuceno on charges of murder with a firearm, felon in possession of a firearm, and two counts of unlawful use of a weapon with a firearm. Resp. Exh. 102. Nepomuceno's family retained attorney Jeffrey M. Jones to represent him; when they could no longer afford to pay, the trial court appointed Jones as counsel. Resp. Exh. 116, p. 1. Nepomuceno ultimately agreed to plead guilty to murder and felon in possession of a firearm in exchange for dismissal of the two counts of unlawful use of a weapon. Resp. Exh. 103. In the Petition to Enter Plea, Nepomuceno acknowledged that the mandatory sentence for the murder charge was life with a 300 month (twenty-five year), minimum term of imprisonment. Id. The petition also stated “I understand that the District Attorney will recommend the following sentence dismiss counts 3 & 4. Stipulate to life [sentence] with 25 year minimum with concurrent time on felon-in-poss[ession] charge.” Id.
On October 4, 2013, the trial judge conducted a change of plea hearing. Resp. Exh. 104, pp. 48-62. During the hearing, the trial judge engaged in a colloquy with Nepomuceno to determine the nature of his plea. Id. at 51-54. The trial judge asked Nepomuceno whether he had signed the plea agreement, whether he had reviewed the document prior to his signing, and whether he understood his rights as “included” in the plea agreement. Id. Nepomuceno answered in the affirmative to all of the trial judge's questions. Id. The trial judge asked if Nepomuceno knew he could proceed to trial; Nepomuceno answered that he knew that he could. Id. The trial judge asked Nepomuceno if he knew that by entering a guilty plea he was giving up his right to trial; Nepomuceno answered that he knew that as well. Id. The trial judge then asked Nepomuceno how he pled to the charges against him; Nepomuceno pled guilty to both. Id.
At sentencing, the state recommended “life sentence with the mandatory minimum 300 [month] sentence.” Resp. Exh. 105, p. 54. The defense acknowledged the mandatory minimum requirements. Id. at 57. The trial judge stated that “[t]he parties have reached an agreement with regards to the sentence, ” and imposed “a lifetime sentence with a minimum of 300 months.” Id. at 59.
Nepomuceno timely appealed to the Oregon Court of Appeals. Resp. Exh. 106. Apellate counsel filed a Balfour brief on Nepomuceno's behalf. Resp. Exh. 106, pp. 63-67. In his Part B submission, Nepomuceno asserted only one assignment of error: that the sentencing court did not have “authority to impose joint liability of a restitution agreement.” Resp. Exh. 106, p. 6. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. State v. Nepomuceno, 272 Or.App. 665, rev. denied, 358 Or. 146 (2015).
State v. Balfour, 311 Or. 434 (1991); Or. R. App. Pro. 5.90 (2014).
Nepomuceno then filed a petition for state post-conviction relief (“PCR”) asserting two claims for relief. Resp. Exh. 112. First, he alleged that his guilty plea was not “not knowing, voluntary or intelligent” and “in substantial violation of his rights to due process of the law[.]” Id. at 3-7. Second, he alleged trial counsel failed to provide effective assistance of counsel. Id. at 7-8. Specifically, Nepomuceno claimed that trial counsel made misrepresentations about the actual amount of time Nepomuceno would serve as a result of a guilty plea and, as a result, Nepomuceno believed he would serve only twenty-five years. Id.
In support of his claims, Nepomuceno submitted a declaration stating that trial counsel never told him that after serving 25 years he would have to prove to the parole board that he was capable of rehabilitation and, that if trial counsel had explained the parole release process to him, he would never have pleaded guilty. Resp. Exh. 119, pp. 2-3. The state submitted a declaration from trial counsel, stating that he had explained the sentence and plea parameters to Nepomuceno:
10. I explained to petitioner that he would receive a sentence of imprisonment for life for the murder conviction. I told him it may be that he could get out after 25 years, but that was up to the parole board to decide if he should be released. I told him that he should consider it to be a life sentence, because he could not predict what would happen with him in prison, and that he could not predict what the parole board may do with his sentence.
11. I told petitioner that the 25-year minimum sentence did not mean that he would simply be released after 25 years, but that it was up to the parole board. I did not try to explain to him why the parole board would decide to let him out, or not let him out, 25 years from his date of sentencing. I did not, and do not, feel I can predict what the parole board could do in 25 years, or on what grounds they would make their decision.Resp. Exh. 122, pp. 3-4. Following an evidentiary hearing at which Nepomuceno testified, the PCR trial court denied relief on both of Nepomuceno's claims. Resp. Exh.. 129. The PCR trial court found as follows:
The petitioner's testimony at this hearing was not credible. Trial counsel's testimony by affidavit, on the other hand, is credible. Petitioner testified that his trial counsel told him he needed to take the plea bargain and forgo his right to a jury trial because trial counsel had insufficient time to prepare either a defense of self-defense or a defense of lack of intent to cause the death of the victim. The defendant admits that he first lied to his trial counsel when he attempted to set up an alibi defense by denying that he was present at the time of the shooting of the victim. He also admits that he eventually told his lawyer that he shot the victim. However, he testifies that he then claimed the shooting was in self-defense and/or that he did not intend to kill victim. He claims he told his attorney he wanted a jury trial.
Not only does trial counsel refute that claim, but the claim itself is implausible.Id. at 1 (emphasis added).
The PCR trial judge also found that Nepomuceno “failed to establish any prejudice.” The court found that Nepomuceno would not have gone to trial in any circumstance, because the state's evidence was “overwhelmingly in favor of conviction based on the eye-witness testimony at the scene of the crime as well as the testimony of the co-defendant, which established that the petitioner had shot a rival gang member in the chest after circling the block to find him because of an earlier encounter in which the victim had flashed gang signs.” Id. at 3.
Nepomuceno appealed the denial of his PCR petition to the Oregon Court of Appeals, asserting two assignments of error. Resp. Exh.. 130. First, Nepomuceno argued, the PCR trial court erred when it denied Nepomuceno relief on the claim that his guilty plea was not knowing, voluntary, or intelligent. Id. at 5. Second, the PCR court erred when it denied Nepomuceno relief on the claim that he received ineffective assistance of trial counsel. Id. The state moved for summary affirmance, arguing that Nepomuceno had shown “no substantial question of law as to the post-conviction court's [] finding on prejudice” and therefore presented “no basis for reversal.” Resp. Exh. 17, Ex. 131, pp. 2-3. The Court of Appeals granted the state's motion, and the Oregon Supreme Court denied review. Resp. Exhs. 134, 135.
Nepomuceno then filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court, alleging three grounds for relief. First, Nepomuceno alleges that his guilty plea was not “knowing, voluntary, or intelligent” as follows:
Trial counsel was ineffective by failing to advise me about the direct and collateral consequences surrounding my plea agreement. Instead I was under the impression and believe my plea agreement ensured I'd get released from prison when I completed 25 years. This incomplete understanding of the plea was [sic] a result of incompetent advi[c]e by counsel. If counsel would [have] competently advised me of the full and complete scope of my plea agreement, I would not have chosen to plead guilty.
Nepomuceno's second and third claims allege trial counsel provided ineffective assistance as follows:
Trial counsels' advi[c]e before I plead guilty was not of a reasonable professional skill and judgment. For counsel failed to inform/advise me: 1) counsel could
[have] prepared my defense and proceed[ed] to trial. 2) I couldn't receive a minimum of 35 years. 3) I wasn't guaranteed a release date after 25 years, and could spend the remainder of my life in prison. 4) I would have to meet requirements and/or possibly wait additional years for another parole hearing. Counsel's acts and omissions deprived me of substantial and significant information. If giv[en] competent advi[c]e, I would [have] not plead guilty and would [have] proceeded to trial.
Trial counsel's failure to argue and contend the charge of murder was not of a reasonable professional skill, competence, and judgment. For I did not meet the standard/definition for murder, I lacked the “intent” to kill. My actions arose out of emotional disturbance, causing reckless behavior. There's a great reasonable probability that if counsel advocated my defense, I would [have] got a manslaughter 1 or 2. Instead I received a sentence disproportionate to the offense.
In his Brief in Support, Nepomuceno addresses only his claim that trial counsel provided erroneous advice which led Nepomuceno to understand that he would be released from prison after twenty-five years if he accepted the state's plea agreement, and that had his attorney fully and properly informed him about the terms of the plea agreement, Nepomuceno would have rejected the offer and proceeded to trial. Respondent argues that the PCR trial court's decision denying relief on this claim is entitled to deference. As to the remaining claims, Respondent contends that petitioner fails to satisfy his burden of establishing he is entitled to relief and that, in any event, the claims are procedurally defaulted.
Nepomuceno does not specify in his Brief in Support whether he is addressing the claim alleged in Ground One or in sub-part three of Ground Two. The court notes that the two claims appear identical; although Nepomuceno identifies Ground One as “Guilty Plea(s): Not knowing, voluntary, or intelligent, ” he invokes the Sixth and Fourteenth Amendments and describes the supporting facts in terms of an ineffective assistance of counsel claim. As such, the court addresses the two claims in concert.
Legal Standards
I. Relief on the Merits
An application for a federal writ of habeas corpus is governed by 28 U.S.C. § 2254 (2020), as revised by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The AEDPA instructs federal courts not to grant a writ of habeas corpus unless the adjudication of a claim in state court was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d) (2020).
A state court decision is contrary to federal law “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003)(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Alternatively, “[u]nder the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court]'s decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. The inquiry under this clause is not whether the state court decision was erroneous, but whether the decision was “objectively unreasonable.” Nunes v. Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003)(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003)).
II. Ineffective Assistance of Counsel
The Sixth Amendment provides defendants with the right to assistance of counsel in all criminal prosecutions, which implies the right to effective assistance of counsel. Missouri v. Frye, 566 U.S. 134, 138 (2012). The “Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical' stages of the criminal proceedings.” Id. at 140 (quoting Montejo v. Louisiana, 556 U.S. 778, 786 (2009)). In Padilla v. Kentucky, the Court noted that the negotiation of a plea bargain is included among these “critical stages.” 559 U.S. 356, 373 (2010).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two-prong standard for evaluating claims of ineffective assistance of counsel. First, a defendant must show that counsel's “representation fell below an objective standard of reasonableness, ” id. at 688; and second, he must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, ” id. at 694. Review of counsel's performance under the first prong should be “highly deferential” to counsel. Id. at 689. “Every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. Under the “prejudice” prong, where a defendant claims ineffective assistance of counsel led him to accept a plea agreement instead of going to trial, he must show a “reasonable probability” that, but for his counsel's ineffectiveness, he would have proceeded to trial and would not have pleaded guilty. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
A federal habeas review of an ineffective assistance of counsel claim is “doubly deferential.” See Cheney v. Washington, 614 F.3d 987, 995 (2010)(noting federal court review of a state court Strickland decision applies both AEDPA and Strickland deference). “[A] federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). “When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Premo v. Moore, 562 U.S. 115, 123 (2011). The “last reasoned decision” by the state court serves as the basis of review by the federal court under this heightened deferential standard. Id.
III. Procedural Default
If an applicant has not “exhausted the remedies available in the courts of the State, ” an application for a writ of habeas corpus “shall not be granted.” 28 U.S.C. § 2254(b)(1) (2020). “Exhaustion is determined on a claim-by-claim basis.” Insyxiengmay v. Morgan, 403 F.3d 657, 667 (9th Cir. 2005). “A petitioner can satisfy exhaustion by either: (1) fairly and fully presenting each federal claim to the state's highest court or (2) showing that there is no state remedy available.” Id. (citing Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996); see also Nguyen v. Curry, 736 F.3d 1287, 1292 ((9th Cir. 2013) (“A petitioner exhausts a claim by clearly presenting to the highest court of the state the federal basis and federal nature of the claim, along with relevant facts.” (internal quotation omitted)). A petitioner must “fairly and fully” present, id, federal law claims in order to give a state court “the opportunity to pass upon and correct alleged violations of its prisoners' federal rights[, ]” Baldwin v. Reese, 541 U.S. 27, 29 (2004). A state court will have had this opportunity if it was given a chance to resolve any constitutional issues by invoking one complete round of the State's established appellate review process. Kayer v. Ryan, 923 F.3d 692, 701 (2019) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999))(internal quotation marks omitted).
“If a petitioner tries to present a claim to the state court but is prevented from doing so by his failure to comply with a state procedural rule, the claim is ‘technically exhausted' but procedurally defaulted.” Nguyen, 736 F.3d at 1292. “Procedural default is an affirmative defense, and the state has the burden of showing that the default constitutes an adequate and independent ground for denying relief.” Scott v. Schriro, 567 F.3d 573, 580 (2009)(citing Insyxiengmay, 403 F.3d at 665)(internal quotations omitted). “Once the state meets that burden of proof, the burden on all remaining issues shifts to the petitioner.” Id
Procedural default may be excused upon a showing of fundamental miscarriage of justice. Pinnell v. Belleque, 638 F.Supp.2d 1231, 1237-1238 (2009) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). “In the habeas-corpus context, a fundamental miscarriage of justice occurs when a ‘constitutional violation has probably resulted in the conviction of one who is actually innocent.'” Id. at 1238 (citing Smith v. Baldwin, 510 F.3d 1127, 1139 (2007)). The miscarriage of justice exception may only be applied to the procedural default rule in cases where a habeas petitioner alleges innocence. Johnson v. Knowles, 541 F.3d 933, 936 (2008). Procedural default may also be excused upon a showing of cause and prejudice. Pinnell, 638 F.Supp.2d at 1237- 1238 (citing Coleman, 501 U.S. at 750). This exception requires “(1) ‘cause' for the default, where the cause is something external to the prisoner that cannot be fairly attributed to him; and (2) prejudice.” Clabourne v. Ryan, 745 F.3d 362, 375 (9th Cir. 2014) (overruled on other grounds).
Discussion
I. Ineffective Assistance of Counsel for Failure to Properly Advise Nepomuceno About the Sentence
Nepomuceno has not satisfied the burden of proof to support his claim that trial counsel was ineffective in failing to properly advise him about the sentence he faced, or to support his claim that his plea was not knowing, voluntary, or intelligent. As noted, the PCR court found trial counsel's testimony was credible and Nepomuceno's testimony was not. The PCR judge found that trial counsel advised Nepomuceno “that the parole board would consider releasing him after serving 25 years of the life sentence imposed on the murder charge.” Petitioner contends that the credibility finding was unreasonable under § 2254(d)(2) because it was based solely on a written declaration from counsel, rather than live testimony.
To be sure, live testimony is generally preferable to a written record. See, e.g. United States v. Yida, 498 F.3d 945, 950 (9th Cir. 2007). That does not mean, however, that a credibility determination may never be based on written testimony or that such a finding is necessarily unreasonable. See, e.g., Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (“[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous”); see also Exum v. Hoefel, 495 Fed.Appx. 852 (9th Cir. 2012) (where petitioner's deposition testimony directly contradicted her counsel's affidavit and original plea petition state court was not objectively unreasonable in making a credibility determination without hearing live testimony).
Here, nothing in the record suggests the PCR court was “wrong, ” Taylor, 366 F.3d at 999, or that it made an “unreasonable determination, ” 28 U.S.C. § 2254(d), in concluding that trial counsel's testimony was credible and Nepomuceno's was not. Given trial counsel's declaration, the plea petition that petitioner signed stipulating to a “life sentence with 25 year minimum, ” and the PCR trial court's opportunity to observe Nepomuceno's live testimony, the PCR court's findings were objectively reasonable. Based on this credibility determination, the PCR court reasonably concluded that Nepomuceno failed to establish that counsel's representation fell below an objective standard of reasonableness.
Nepomuceno also argues the PCR trial court's determination that he failed to establish prejudice was contrary to and an unreasonable application of Strickland to the extent the PCR court's ruling relied upon a calculation of Nepomuceno's chances at trial. Because Nepomuceno has not established that trial counsel's representation fell below an objective standard of reasonableness, however, the court does not address this claim. See Gentry v. Sinclair, 705 F.3d 884, 899-900 (9th Cir. 2013) (where court “determined it was not unreasonable to dispose of ineffective assistance claim on the deficient performance prong, there is no need to address the prejudice prong”) (citing Strickland, 466 U.S. at 697).
The PCR court's conclusion that Nepomuceno did not receive ineffective assistance of counsel was not contrary to or an unreasonable application of Strickland, and, as such, is entitled to deference. Accordingly, Nepomuceno is not entitled to habeas corpus relief on his claim that trial counsel provided ineffective assistance of counsel which resulted in his plea not being voluntary and knowing.
II. Claims not Addressed in Petitioner's Brief in Support
As noted, Nepomuceno does not provide any legal argument on his remaining claims. Because of that failure, he has not sustained his burden to demonstrate why he is entitled to relief on these claims. See Lampert v. Blodgett, 393 F.3d 943, 970 n. 16 (9th Cir. 2004). Nevertheless, the court has reviewed these claims and is satisfied that Nepomuceno is not entitled to habeas corpus relief. The only ineffective-assistance-of-counsel claim from ground two that Nepomuceno presented on appeal from the denial of his PCR petition is the claim addressed above; he did not raise the remaining sub-parts. The ineffective-assistance-of-counsel claim alleged in ground three was never presented to the state PCR court. As such, these claims are procedurally defaulted. Because Nepomuceno does not establish cause and prejudice or a miscarriage of justice excusing his procedural default, he is not entitled to habeas corpus relief on these claims.
Conclusion
For these reasons, the Petition for Writ of Habeas Corpus (ECF No. 2) should be DENIED, and a judgment of dismissal with prejudice should be entered. A certificate of appealability should be denied because Nepomuceno has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2) (2020).
Scheduling Order
The above Findings and Recommendation are referred to a United States District Court Judge for review. Objections, if any, are due by November 15, 2021. If no objections are filed, review of the Findings and Recommendation will go under advisement that date. A party may respond to another party's objections within 14 days after the objections are filed. If objections are filed, review of the Findings and Recommendation will go under advisement upon receipt of the response, or on the latest date for filing a response.
IT IS SO ORDERED. 14